Summit Medical Associates

The central issue raised in this interlocutory appeal is whether Alabama’s Eleventh Amendment sovereign immunity bars this suit in federal court against the Governor, the Attorney General, and the District Attorney challenging the Alabama Partial-Birth Abortion Ban Act of 1997 (“partial-birth abortion statute”) and the Abortion of Viable Unborn Child Act (“post-viability abortion statute”). We hold that Appellees’ challenge to the statutes’ criminal liability provisions falls squarely within the exception to the Eleventh Amendment embodied in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and, therefore, that the district court did not err in denying Appellants’ motion to dismiss this § 1983 action on these grounds. However, with respect to Appellees’ challenge to the private civil enforcement provision embodied in the partial-birth abortion statute, we conclude that, because Appellants have no enforcement authority over those specific provisions, the Ex parte Young exception does not apply, and Alabama’s sovereign immunity bars this specific claim. Accordingly, we affirm in part, reverse in part, and remand this case with instructions to the district court to dismiss Appellees’ challenge to the private civil enforcement provision of the partial-birth abortion statute.